Stackpole Components Co.

STACKPOLE COMPONENTS COMPANY Stackpole Components Company and International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local 187. Case I -CA-6593 September 30, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On April 27, 1977, Administrative Law Judge Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed cross-exceptions and a brief in answer to Respon- dent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order, as herein modified. The Administrative Law Judge found, and we agree, that on February 19, 1976, the parties entered into a collective-bargaining agreement with a March 1, 1976, effective date: that said agreement included provisions for checkoff of union dues; and that Respondent refused to execute or administer the agreement for reasons which violated Section 8(a)(5) and (1) of the Act. The Administrative Law Judge ordered Respondent to execute and to give retroac- tive effect to the agreement, but did not require it to reimburse the Union for all dues properly authorized to be deducted but which it failed to deduct and transmit to the Union. The Union has excepted to the Administrative Law Judge's failure to order Respondent to comply with its dues reimbursement obligation. We find merit in this exception and, accordingly, shall require Respondent to comply with the dues-checkoff provision of the contract and remit to the Union the dues due and owing for each employee who executed a dues-deduction authoriza- tion, together with interest at 7 percent per annum. The determination of valid authorizations is a matter for the compliance stage of this proceeding. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as 232 NLRB No. 117 modified below, and hereby orders that the Respon- dent, Stackpole Components Company, Raleigh, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Insert the following as paragraph 2(b) and letter the remaining paragraphs accordingly; "(b) Reimburse the Union for all membership dues which, since March 1, 1976, Respondent has failed to withhold and transmit to the Union pursuant to signed dues deduction authorizations and in accor- dance with the checkoff provision of the collective- bargaining agreement, with interest computed there- on in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). " 2 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established polic) not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Drv Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully examined the record and find no basis for reversing her findings. 2 See, generally, Isis Phirmbing & Heating Co., 138 NLRB 716 (1962). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain by refusing to execute a contract negotiated and agreed upon with International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local 187, or condition execution of an agreed-upon collective- bargaining contract on the aforesaid Union's withdrawal of unfair labor practice charges or withdrawal of a lawsuit filed under Title VII of the Civil Rights Act of 1964, or bargain to impasse over withdrawal of that lawsuit, a nonmandatory subject of bargaining. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL, upon request of the aforesaid Union, execute and give retroactive effect to the collec- tive-bargaining contract on which agreement was reached on February 19, 1976, effective March 1, 1976, for a year, and to a I-year renewal effective March 1, 1977, or, if the Union does not request such execution or renewal, WE WILL bargain collectively in good faith upon request with the aforesaid Union as the certified exclusive collec- tive-bargaining representative of our employees in 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the unit found appropriate, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is: All production and maintenance employees employed at our Raleigh, North Carolina, plant, excluding all office clerical employees, technical employees, professional employ- ees, guards and supervisors as defined in the Act. WE WIIL reimburse said Union for all member- ship dues which, since March 1, 1976, were authorized by our employees to be deducted but which we failed to deduct and transmit to said Union. STACKPOLE COMPONENTS COMPANY DECISION STATEMENT OFr THE CASE ANNE F. SCHLEZINGER, Administrative Law Judge: Upon a charge and an amended charge filed respectively on May 26 and July 9, 1976,' by International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC, Local 187, herein called the Charging Party or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 11, issued a complaint and notice of hearing on July 20 and an amendment to complaint on August 3. The amended complaint, further amended at the hearing, alleges that Stackpole Components Company, herein called the Re- spondent, has since on or about February 26, 1976, refused to bargain collectively with the Union, which was certified on November 14, 1974, as the exclusive collective-bargain- ing representative of the production and maintenance employees in an appropriate unit, by refusing to execute an agreed-upon contract, by conditioning execution of an agreed-upon contract on the Union's withdrawal of unfair labor practice charges filed against the Respondent, by bargaining to impasse over a nonmandatory subject of bargaining, to wit, the Union's refusal to withdraw a lawsuit filed against the Respondent under Title VII of the Civil Rights Act of 1964, and by conditioning execution of an agreed-upon contract on the Union's withdrawal of the lawsuit, and that the Respondent has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. The Respondent, in its answer and amended answer duly filed, admits certain factual allegations of the complaint, but denies that it engaged in conduct violative of the Act. I All dates hereinafter refer to 1976 unless otherwise indicated. 2 The reporter announced at the November 5 hearing that the tapes of the November 4 hearing had been stolen from the reporter's car. The Pursuant to notice, a hearing was held before me in Raleigh, North Carolina, on November 4 and 5 and December 7 and 8.2 All the parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing the parties waived closing argument. Subsequent to the hearing, the General Counsel, the Respondent, and the Charging Party filed briefs on or about February 7, 1977, which have been fully considered. Upon the entire record in this case including the testimony, the exhibits, and my evaluation of the credibili- ty of the witnesses based upon their testimony, their demeanor, and the inherent plausibility of the circum- stances set forth in their testimony, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is, and at all times material herein has been, a Delaware corporation with a plant in Raleigh, North Carolina, where it is engaged in the manufacture and distribution of electrical components. During the past 12 months, which period is representative of all times material herein, the Respondent received at its Raleigh plant products valued in excess of $50,000 directly from points located outside the State of North Carolina, and manufactured, sold, and shipped from its Raleigh plant products valued in excess of $50,000 directly to customers located outside the State of North Carolina. The complaint alleges, the Respondent in its answer admits, and I find, that the Respondent is, and at all times material herein has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 1I. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the Respondent in its answer admits, and I find, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The issues herein are whether the Respondent, in violation of Section 8(a)(1) and (5) of the Act, refused to execute a contract on which agreement had been reached; conditioned execution of a contract on which agreement had been reached on withdrawal by the Union of unfair labor practice charges it filed alleging various unfair labor practices by the Respondent including refusal to bargain, and thereafter conditioned execution of a contract on which agreement had been reached on withdrawal of a lawsuit filed by the International Union under Title VII of the Civil Rights Act of 1964; and bargained to impasse over the nonmandatory subject of withdrawal of the lawsuit. There is no dispute that the conduct set forth in the complaint would be violative of the Act, but there is witnesses who were examined on November 4 were examined again when the hearing resumed on December 7 as the missing tapes had not been recovered. 724 STACKPOLE COMPONENTS COMPANY considerable conflict in the testimony as to whether positions were taken at certain sessions during the prolonged negotiations that constitute the violations alleged. B. The Witnesses The General Counsel called as witnesses Michael Giardino, secretary-treasurer of the International Union's District 1, whose office is in Philadelphia, and Willis Robinson, a field representative of the International Union, whose office is in Raleigh. Both have duties that encompass assisting Local 187, the Charging Party, which represents the Respondent's employees, and both partici- pated with other union representatives in negotiations with the Respondent. Both testified about negotiation sessions at which they were present on the basis of their recollec- tion. Giardino took no notes at the negotiation sessions he attended. Robinson took a few sketchy notes which he brought to the hearing at the request of counsel for the Respondent, who examined them. None were placed in evidence. The Respondent called as its witnesses Norman Bender, president and chief executive officer, John Bezek, manager of industrial relations, and James Miles, one of the Respondent's attorneys. The Respondent's representatives had minutes or notes of telephone conversations, meetings, and negotiation sessions. The Respondent was permitted to place many of these notes or minutes in evidence over the objections of counsel for the General Counsel and counsel for the Charging Party. Creech, one of the Respondent's attorneys, took notes at some meetings. Bezek testified that he was unable to interpret Creech's notes. Others also took notes for the Respondent at times, and at times no one did, but for the most part the notes were taken by Bezek, who was the Respondent's chief negotiator. Bezek referred at times in his testimony to his "notes" and to his "minutes," and explained that minutes were those taken physically at a negotiation session, whereas notes might refer to a writeup of what occurred at meetings where he did not take official minutes but wrote up what occurred after the session. Bezek took notes during negotiation sessions in long- hand, later made changes to clarify and correct the language, sometimes rewrote the notes to make them legible, had them reviewed at times by Bender or one of the Respondent's attorneys who made revisions, and then had them typed in the office or on occasion typed them himself, sometimes days later. Miles, who attended certain negotia- tion sessions with Bezek, testified that Bezek took some notes at these sessions but "I had made just scribble notes. In fact, I don't think I made many because I had done most of the talking." Bezek's notes covered negotiation sessions at which he was the only Respondent representa- tive. The notes or minutes were not shown to the union representatives. There was a reference in Bezek's notes on one of the negotiation sessions that he testified he did not understand and could not explain. It did not appear in the typewritten I John Zink Compannv, 196 NLRB 942 (1972). enfd. C.A. 10. June 22, 1973 {unpublished). and 551 F.2d 799 (C.A. 10, 1977). (apital Rubber d Specialr Co., 198 NLRB 260(1972): O'Land. Inc.. d h a Ramada Inn South, 206 NLRB 210 (1973); Oil, (hemical and Altomi Workers International version. None of the notes or minutes purported to be verbatim or complete accounts of the meeting in question. Some of Bezek's notes were far more detailed than his testimony about the particular meeting. As to one meeting, Bezek testified that "there is no way, that I, in my humble mind, could ever determine who said what, when and where." And as to his remembering certain issues, he stated "again, specifically, I don't-but that would be almost impossible to pinpoint that." Giardino and Robinson impressed me as forthright and believable witnesses, testifying candidly to the best of their recollection as to numerous negotiation sessions and conversations with the Respondent. On the other hand, I found Bender, Bezek, and Miles evasive and unconvincing witnesses, whose testimony and notes appeared contrived not to show what was said but to establish and document a defense to a charge by the Union of refusal to bargain.3 Accordingly, where the testimony is in conflict. I credit that of Giardino and Robinson. C. The Negotiations Following an election held on October 11, 1973, the Union was certified on November 14, 1974, as the exclusive collective-bargaining representative of a unit of all produc- tion and maintenance employees employed at the Respon- dent's Raleigh, North Carolina, plant, excluding all office clerical employees, technical employees, professional em- ployees, guards and supervisors as defined in the Act. Bezek testified that the parties entered into a settlement agreement on May 22, 1975, agreeing to bargain collective- ly. The parties at the hearing stipulated that formal contract negotiations began on August 4, 1975;4 that they contin- ued periodically until May 18, 1976, and thereafter; and that, as of February 4, 1976, there were three outstanding issues to be resolved through the negotiations: grievance procedure, wages, and dues checkoff. The negotiation sessions were held at a motel. At the first session, Bender designated Bezek as the Respondent's chief spokesman in the negotiations, said an attorney would be present at some negotiations as the Respondent's representatives were inexperienced in such matters, and made a statement about the Respondent's financial condition, then left. At meet- ings thereafter, agreement was reached on a number of provisions, which were sometimes in writing and initialed, but in other instances the agreement was verbal. Bezek testified that at a meeting on January 14, 1976, Robinson said checkoff was a critical matter to the Union, and that he or Miles responded that "checkoff must have a price somewhere." Checkoff was discussed also at later meetings. Bezek testified that Robinson at an early date showed him as an example a page of a contract at the Scovill plant, represented by an IUE local, but denied that the Union proposed a checkoff provision like that in the Scovill contract. Bender testified that Carmichael, president of the International Union's District 1, whose office is in Union and its Local 7-507. 212 NLRB 98, 106 (1974): Schuvikill Metals Corporation. 218 NLRB 317, 320(1975). 4 Bezek testified that the Respondent has for years improved wages and employee benefits on or about August I. 725 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pittsburgh, telephoned in early January, expressed dissatis- faction with the progress of the negotiations, mentioned the three outstanding issues, and asked for a meeting;5 that Carmichael telephoned again on January 23; that Bender said he was tied up but would ask Bezek to meet with Carmichael, and Bezek did so; that Carmichael called after meeting with Bezek, said they were unable to conclude anything and were to meet again the next day, a Saturday, and Carmichael would like to have an agreed-upon package to present to the membership at a meeting that evening; that he told Carmichael he did not believe that was possible; and that he later told Bezek they might in that time agree on a wage package but could not resolve the other issues. Carmichael tried to reach Bender again on January 26 and on February 6, but Bender was not at the plant. Carmichael did reach Bender on February 9 and, as Bender testified, said the membership had rejected the proposals on wages and certain other matters, and Carmichael urged a meeting to "try to resolve some of these things, if there was any way-or at least talk about them. And I had indicated to him that I was willing to talk. I was willing to talk, but I was not willing to negotiate." Bender testified further that he agreed to meet with Carmichael on February 19; that he urged that this was to be "only on the basis of an exploratory type of meeting," and should be limited to the two of them; that Carmichael objected on the ground that Bender was more familiar than Carmichael was with the details of the negotiations; and that he then recommended, and Carmichael agreed, that it would be a two-on-two meeting. 1. February 19 meeting Carmichael and Giardino met on February 19 with Bender and Bezek. Other union representatives were excluded at Bender's demand. Giardino testified that he told the Respondent they would have a contract when the three issues, grievance procedure, wages, and checkoff, were settled; that after some discussion Bender said he could live with certain proposed changes in the grievance procedure; and that, in the discussion on wages, Bender explained that he could not increase the wage offer, but proposed, on the assumption of a contract for a year beginning March I, adding a provision for a wage reopener on August 1, which the Union accepted. Giardino testified further that he had, throughout the prior negotiations and at this meeting, referred to checkoff as contained in a contract with Scovill, and that, when he stated that the next issue to be discussed was the checkoff provision, Bender said, since wages were settled, there would be no problem as to that type of checkoff. Giardino testified that "We shook hands. We had a collective bargaining agreement." The Respondent's representatives accepted the invitation to lunch at the motel with the two union representatives who were at the meeting and the two who were excluded. Both Giardino and Robinson testified that during the luncheon Carmichael said he was glad agreement had been reached because he did not want a strike, and Bender expressed the same sentiments; that Carmichael also said that, as agreement was reached, he did not have to be present at the next meeting but would have Giardino handle the final negotiations, and Bender said there was also no need for him to be present; and that the next meeting was scheduled for February 26 to reduce the three issues to writing and sign the collective-bargaining agree- ment. Robinson, who was not at the two-on-two discussion, testified that Carmichael told him agreement was reached on the three issues, including checkoff based on the Scovill contract, which the Union had proposed in negotiations at various times since August 1975. Bender testified that, at the February 19 meeting, he spoke again of the Respondent's financial problems; that, prior to any discussion of the issues, he insisted that this had to be a two-on-two meeting, and the union representa- tives other than Carmichael and Giardino left the room; that he reminded the Union they were there to "explore," not to negotiate, and any position found to have merit had to go to a negotiation session; and that he said he viewed checkoff as a major problem that it was unlikely they could resolve at that time. Bender agreed to certain changes in the grievance procedure, and Bezek testified that, at this time, "The grievance procedure was pretty well put to rest." Bender testified that Giardino commented at this point that "we were making progress, and hopefully, if we continued, we could wrap this thing up." Bezek testified that, when Giardino expressed satisfaction with the progress being made and said "let's go on to the next thing; we're not going to have any problems. Mr. Bender said, you know, remember we are here to discuss; all of this must be taken to the negotiating table. But, you know, things may not be so easy in regard to checkoff." Bender testified that, during the discussion of the next issue, wages, he suggested an August I wage reopener, assuming an agreement reached as of March 1; that Giardino accepted this suggestion enthusiastically and "said that if we could continue again and make this kind of progress that we could get this thing wrapped up . . ."; that he said this would have to be taken up at a negotiation session; and that he pointed out repeatedly they had "a sticky wicket to worry about," but no one asked what that meant. Bezek also testified that Bender made the "sticky wicket" references. Both Bender and Bezek testified that they discussed a date for a negotiation session at which Giardino and Bezek, but not Carmichael and Bender, would be present; and that Bender wanted then to return to his office but was persuaded to accept the Union's invitation that he and Bezek lunch with the union representatives at the motel. Bender denied that anyone said they had an agreement. Bezek testified that he did not hear Carmichael say he was glad they had agreement as they did not need a strike, and did not hear Bender agree with this. Bender denied that the Union made any proposal, and that there was any discussion at any time during this meeting, as to checkoff. He admitted, on cross-examina- tion, that in January there were three major issues and 5 Bender kept notes of all his telephone conversations with Carmichael. 726 STACKPOLE COMPONENTS COMPANY many minor ones, and that the February 19 meeting was to try to reach understanding on the three major issues as well as others. He maintained, however, that only two of the three major items were discussed, and that the only references to the third, checkoff, were his comments "that it was a problem to the company" and, as he later recalled, Carmichael's statement that the three major issues included checkoff. Bender testified that Bezek kept him informed as to the negotiations but never spoke of a Scovill checkoff, and that he never heard of the Scovill checkoff before the hearing herein. Bezek testified that "There were two to three references to checkoff, by Mr. Bender, indicating that this may present a problem. But there were no discussions per se. Checkoff was mentioned by Mr. Carmichael as being one of the three areas left, to resolve." Bezek also denied that Scovill was mentioned at this meeting. He recalled that it was previously mentioned "Several times. Particularly early in negotiations, I would say. August, September 1975," but he could not recall that it was mentioned at any time in 1976. Bender testified that, when he returned to his office, he reported by telephone to Miles, who "recommended that notes be made of the meeting; that it be documented"; and that Bezek wrote up the notes, and he reviewed them and had an opportunity to change them "in any material respect." This was Bender's last meeting with the Union. Bezek also testified that, when he and Bender returned to the plant, they made a conference call to Miles and "reported the events that transpired. Personally indicated to Mr. Miles my complete disbelief that checkoff had not been discussed, or raised for discussion. And Mr. Miles instructed me to make sure that I sat down and wrote up my recollection of the events of the meeting. Which I did." The meeting was on Thursday. Bezek typed his notes on Saturday morning. 2. February 26 meeting At the opening of the February 26 meeting, Giardino requested, and Bezek agreed, that a notice would be posted in the plant about a membership meeting that evening to ratify the agreement. Giardino and Robinson testified that Giardino also said they were there to finalize and put the agreement on the three major issues in writing; that Bezek agreed; that Robinson wanted to discuss checkoff first but, at Bezek's request, they took up grievance procedure, wages, and checkoff in that order; that they agreed to the grievance procedure with certain changes and to the wage provisions with the August I reopening: and that Bezek then rejected the Scovill checkoff, but offered to permit the Union to have a booth to collect dues on the parking lot for a couple of hours once a month. The Union, after a caucus, said it had to agree on this checkoff method or risk a claim being made by the Respondent that it was interested only in dues, but it would reinstitute its earlier wage proposal based on the rates in a contract at the main plant of Stackpole Carbon Company in St. Marys, Pennsylvania.6 Bezek asked for this wage proposal in writing, and 6 Bender testified that the Respondent is "an entirel independent operation. It is a wholly-owned subsidiary of the Stackpole Carbon Company" Giardino had Robinson type it up and furnished it to Bezek. The membership meeting was postponed as there was no agreement to ratify. Giardino and Robinson admitted, on cross-examination, that no one on February 26 was writing the language of the provisions on which agreement was reached. Bezek testified that the union representatives opened this meeting by saying "they were very hopeful that we could wrap everything up"; that they asked his help in scheduling an employee meeting the next day "for the purpose of ratification"; and that he said he would schedule the meeting so all three shifts could attend without loss of pay. Bezek testified that the union representatives then stated they were there "to wrap up three areas: grievances, wages and checkoff'; that he interrupted to state that "we spent a great, great deal of time at our meeting on 2-19 discussing grievance and wages. But that we had not discussed checkoff'; that Giardino said "he did not bring up checkoff, because he felt there was no need to waste any more time on something that the company had no interest in. And it would not cost the company any money." Bezek testified that they then discussed and agreed on certain revisions as to grievance procedure, that "I believed, then, that that pretty well took care of the wording changes on grievance procedure. And this was pretty acceptable to everybody involved. So we went on to wages." Bezek testified that he restated the Respondent's wage proposal with the August I reopener; that they discussed and agreed on notice and strike provisions with reference to the August wage reopener, "So that in essence, that pretty well wrapped up the wage proviso"; that the parties then worked out the contract termination language; and again that "in essence, we had an agreed-upon wage proposal." Bezek testified that he was then asked about checkoff, and restated the position that the Respondent could not grant mandatory checkoff as this "was an internal union matter . . . in a right-to-work state, checkoff seems to be against that freedom of individual employees to the-the threat of coercion that check off does present to an employee for membership in a union . . . checkoff dues represents another deduction from employees' take-home pay-and in essence, we would wind up being basically as having to provide that, somewhere along the line. And, four, that this mandatory checkoff does not provide a system of checks and balances for services rendered, on the part of a union, to an individual employee." Bezek testified further that the union representatives were upset by his position on checkoff; that Giardino said "we had thrown the union a curve, and there were other statements made which I can't recall, all of them"; that, when the union representatives returned from a caucus, they asked him some questions, including what the Respondent's best position was as to dues collection; and that he answered that it was willing to provide space in the plant to collect dues during nonworking time. Bezek also testified that, after a luncheon recess, Giardino said the Union would accept the Respondent's dues collection proposal and all the other proposals on which they had 727 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreed except that the Union was making a new wage proposal which Giardino read to him. At Bezek's request, the Union had this proposal typed and gave him a copy. He told the Union he considered it unacceptable but would present it to management. 3. March 17 meeting The membership, at a meeting on February 28, rejected the Respondent's checkoff proposal, voted a March 22 strike deadline, and approved bringing a mediator into the negotiations. The mediator set up a meeting with the parties on March 17 at the Union's request. Giardino and Bezek informed the mediator of what had taken place from the viewpoint of each of the parties. Giardino and Robinson testified that the mediator suggested a different checkoff provision, that the Union accepted it, but that the mediator said Bezek would check with management and report on it later. Giardino and Bezek both signed a notice, prepared by the mediator to be posted in the plant, stating that, at the mediator's request, the parties agreed to extend the deadline for an agreement from March 22 to April 19, and were to meet with the mediator on April 13. The membership at a meeting on March 17 extended the strike deadline to April 19. 4. April 13 meeting There was a meeting with the mediator on April 13. Giardino and Robinson testified that the mediator in- formed the Union that the Respondent rejected his checkoff proposal. Bezek testified that the mediator at this meeting proposed a 90-day withdrawal and other checkoff provisions; that he said he would discuss them with management; and that the mediator later informed him that the Union rejected the proposal for an employee vote on checkoff. The mediator did not schedule another meeting as he was leaving shortly on vacation. 5. April 19 meeting Carmichael was present at the meeting on April 19 because of the strike deadline, and Miles accompanied Bezek. Giardino testified that he brought Miles, with whom he was negotiating for the first time, up to date on the negotiations; that they discussed the issues, mainly check- off, at some length; that, at his suggestion, he and Carmichael met with Bezek and Miles, in the absence of the other union representatives; that he then asked Miles what the Union had to do to get a contract signed, and Miles said Bender was very upset because Robinson had filed charges with the Board; that he asked if withdrawing the charges would mean signing a contract, and Miles said it would, the charges were the stumbling block; and that he stated he would have Robinson withdraw the charges, to which Miles responded that Bender would then be in a different frame of mind and the contract would be signed. Robinson testified that Miles said, before the separate meeting, that the Union "had filed charges that certainly clouded the atmosphere" but did not prevent agreement. Giardino testified, on cross-examination, that Miles was the only one who mentioned the charges to him; that Bezek never mentioned them although charges were filed on March II and amended charges on March 22; that he told Miles at the opening of the meeting that he understood there was agreement by all parties on February 19 on certain provisions but the Respondent on February 26 reneged as to checkoff; and that Miles said if the charges were withdrawn he would sign the agreement of February 19. Giardino also testified that Bezek proposed the Union get new checkoff cards signed and start collecting dues on August I, and that he rejected this proposal on the ground the parties had an agreement on checkoff and the Union already had signed checkoff cards. Bezek testified that on April 13 the mediator called and told him the Union requested another meeting and suggested May 7 as "part of postponing strike action on May 19," and that he agrees as the Respondent "certainly" did not want a strike. He also testified that Giardino called later to say the membership would not delay action until May 7 and asked for a negotiation meeting on April 19, and that he said he would let Giardino know; that Giardino called again on April 15, said the Union did not want a strike, and asked if he would attend an April 19 meeting, and he again said he did not know; that Giardino said the Union would be there; and that he did attend with Miles, whom he asked to come and do the talking as he had never faced a strike. Bezek also testified that Miles said, as they walked in, "we're ready to sign the contract. Let's go. Mr. Carmichael and Mr. Miles stated that, fine, if that's the way it is let's sign the contract. Mr. Giardino raised the objection that, you know, some way, somehow, somewhere, somebody has missed the point. That in essence he, Mr. Giardino, had been at the 2-19 meeting. The company agreed to checkoff; striking; for the whole thing. Mr. Miles replied to those statements, that the company isn't interested in strikes. He indicated that we're willing to negotiate any provisions. He made reference to the fact that filing unfair labor practice charges didn't help the bargaining process, in his mind. And there really wasn't much more said at this point." Bezek testified further that Giardino said the Union would rather lose at the picket line as signing a contract without checkoff would hurt the organizational efforts at Westinghouse; that Miles said the plant would operate during a strike and he hoped there would be no violence; and that Giardino said there would be no threats, violence, or damage to property. Bezek testified that, in a later discussion, Carmichael said that there had to be a way to work things out, and that the union representatives were not interested in the dues but had to have a proposal the membership would accept; that Giardino agreed to a checkoff to begin after the August I reopener; but that he, Bezek, proposed that new checkoff cards be obtained after August 1, and there was no agreement on this. Bezek testified that at this point he believed Carmichael asked Miles how much of an objection the charges were, and Miles "stated that, well, the unfair labor practices are your business. I'm not here to tell you what to do, or how to do it. They do provide some obstacles to good faith bargaining. And said that, you know, what you do with those charges-Mr. Giardino indicated that Willis Robin- son may have been a little hasty in filing the charges, but he indicated that he perhaps would take care of that. There 728 STACKPOLE COMPONENTS COMPANY really wasn't much if anything else to discuss." He also testified that he and Miles left expecting a strike, and so reported to Bender by telephone. Miles testified that he walked into the April 19 meeting, with a strike deadline at midnight that night, and said he was there to negotiate in good faith on any proposal the Union wished to present: that Carmichael said the Union found the Respondent's positions unacceptable but that "checkoff didn't mean anything to the union," whereupon "I said, well, great, I said, well, let's sign the contract"; that Giardino stated that the Union had an understanding with Bender and Bezek about checkoff; and that he replied that, while he was not at that meeting, he was in close touch by telephone with Bender and Bezek, who called him as soon as they got out of the meeting and said they were "flabbergasted . . . they told me that checkoff was not even mentioned ... that the union had not brought up the request for checkoff." He also asserted that the charges claiming Bender and Bezek agreed to something they did not "in effect called them a liar," and "when you call the chief executive officer of this company and the industrial relations manager of this company a liar, you've got a problem." He testified that he explained that he was "not saying that the charges are going to hold up . . . the signing of the contract" but that "when you call Bezek and Bender a liar ... that presents a problem for you" and was a "dumb" thing to do. He testified further that during the meeting Carmichael told Giardino that Miles said the charges "are causing us a problem.... I says, wait a minute, Mike, I says-I didn't say that they were causing you a problem. I said, the way you run your railroad is up to you. But, I said it was stupid. Then I said, as a matter of fact, Mike, I think it was dumb, dumb, dumb. That's precisely what I said." Miles admitted Giardino said he would have the charges withdrawn. Miles testified that he also told the Union it would be "silly" to strike over checkoff; that he said Giardino and Carmichael could "sell anything" they wanted to the employees, and should sell them on the package that the Respondent put on the table, with everything "agreed to, except for in the checkoff," and as to that Bezek had offered to let the Union "come in the plant, one day a month, and collect union dues"; but that Giardino said the Union "would rather lose this on the picket line, because if we sign the contract without checkoff, it would ruin our organizational efforts at Westinghouse." Miles testified that, in discussing various checkoff proposals, he argued that, as the negotiations had taken so long, the employees should have an opportunity to sign new cards and to choose whether they wanted, after the August I wage reopener, to have their dues checked off; that the Union refused to get new cards; and that "that's where it bogged down." Miles also testified that he left this meeting expecting a strike. 6. Events later on April 19 Giardino and Robinson testified that, when they were on the way to the membership meeting after the April 19 negotiation session, Giardino said that, as the parties were "so close" to an agreement, Robinson should withdraw the charges and the contract would be signed, they should postpone strike action indefinitely until the mediator returned, and they should notify Bezek and get his thinking on this, and the other union representative agreed. Giardino also testified that he tried to reach Bezek by telephone; that Bezek received his message and called him back; that he told Bezek the charges were to be withdrawn as the parties were "so close" to agreement; that Bezek also said they were close to agreement but Bender was upset by the charges; that he told Bezek the strike would be postponed indefinitely and they would meet further with the mediator; and that Bezek called later to report he had been unable to reach Miles but saw no problem in the program outlined by Giardino. The membership on April 19 agreed to an indefinite strike postponement. Robinson withdrew the charges in writing on April 20. Bezek testified that Giardino notified him by telephone, after the April 19 meeting, that the parties had made progress and the Union did not want to strike, and asked for agreement on more meetings with the mediator and postponement of a strike; that he discussed this with Bender and Miles; that Miles called Giardino and agreed to more meetings; and that he heard Miles say also, "I'm not telling you to dismiss the charges, that's your business. And, whatever you do with those charges is up to you. I can't tell you what to do." Giardino called Bezek again to report that the member- ship had been persuaded by Carmichael not to strike pending further meetings with the mediator. They agreed to postpone such meetings until the mediator who had been involved in the negotiations returned from vacation. Bezek testified that Giardino then stated that he had instructed Robinson to withdraw the charges and that "I questioned him on all of them. And he had said, yes, all of them." Miles testified that he was present with Bezek when Giardino telephoned Bezek and said progress was made as to checkoff, the strike should be delayed, and they should meet further; that Bezek replied that he would discuss it with Miles; that he, Miles, later called Giardino; that in their conversation Giardino said, "I'm going to get rid of those unfair labor practice charges, for you. I said ... I'm not asking you to withdraw the unfair labor practice charges. I said, the way you run your railroad is entirely up to you"; that Giardino said, "Well, I know all that. I know all that. And just-just dismissed it"; and that they agreed on another meeting. 7. May 18 meeting The parties met with the mediator, after he returned from vacation, on May 18. Miles and Bezek were present for the Respondent. Giardino and Robinson testified that Giardi- no said Robinson withdrew the charges so they should sign the contract; that Miles was in a rage at the Union for filing a lawsuit; that Giardino said he knew nothing of a lawsuit and asked what it had to do with the negotiations; that Miles said it could cost the Respondent millions of dollars, and the lawsuit nullified the agreement; that Giardino telephoned union counsel, who told him the lawsuit was filed against Stackpole Carbon Company seeking sick benefits for pregnancy, and it could not be withdrawn as to the Respondent, as it was a class action 729 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suit, when Giardino requested this in order to get a contract signed; 7 that he told Miles and Bezek he had been advised that the lawsuit had nothing to do with the contract, but Miles repeated that the lawsuit nullified the agreement and he would not sign the contract; and that the union representatives asked Miles to point out in what respect the lawsuit nullified the agreement, but Miles merely repeated that the lawsuit nullified the agreement. Giardino also testified, on cross-examination, that he offered to sign a contract with no checkoff provision, but Miles repeated that the contract was nullified; and that he and the mediator indicated they were willing to meet further, but Miles repeated that the contract was nullified. Bezek testified that Giardino stated that as of April 19 they were close to agreement on checkoff, and that the only thing left was the August I provision and then signing the contract; that Miles said a lawsuit had been filed which the "IUE was-I don't recall the word, foolish or dumb, to pursue"; that he, Bezek, also raised objections to the lawsuit as the parties spent hours negotiating on the issue of pregnancy benefits and the "current coverage did not include this provision"; that Giardino stated he knew nothing of the lawsuit, telephoned to ask counsel about it, and returned to say what he negotiated was binding and the Union was ready to sign the contract; that Miles said that in his opinion the lawsuit nullified certain provisions of the contract which he was prepared to sit down and negotiate; that Robinson argued that the lawsuit did not nullify any part of the agreement, and Giardino said, "We're ready to sign the contract, without a dues checkoff, we'll sign it. We have no interest in checkoff"; that Miles replied that they first had to renegotiate the provisions affected by the lawsuit; and that the session ended with Giardino saying the Respondent was not willing to sign a contract and would, if it were not the lawsuit, find some other reason for not signing. Bezek admitted, on cross- examination, that the only issue pointed to on May 18 as precluding execution of a contract was the lawsuit; that checkoff was also an unresolved contract issue but, after the Union offered to sign without checkoff, the only issue was renegotiation of the leave provisions nullified by the lawsuit; and that the Respondent therefore would not, on May 18, sign the contract as previously negotiated, because of the lawsuit. Miles testified that the next meeting he attended with the mediator was on Tuesday, May 18, and that he learned on the previous Friday, from counsel for Stackpole Carbon Company at St. Marys, of a lawsuit alleging sex discrimina- tion and seeking certain sickness benefits. Bezek testified that he learned of the lawsuit about May 14. Miles described what occurred at the May 18 meeting, in part, as follows: And I responded to that, I said, well, I recall, Mike, the problem that we had was that the company felt that the employees, because of the length of the negotia- tions, should have the opportunity to decide for themselves, now, after the August I wage reopener, as to whether or not they want to have their dues checked off. And I said, but-I said, we've got another problem. I said,-and I used some profanity at this point in time, as I recall-and I said, it's absolutely incredible to me, the way this union operates. I said, here we sat, through several sessions, trying to work out the leave of absence provisions, maternity leave provisions, the sickness and accident provisions-- said, and we had numerous conversations concerning the question of disability pay for pregnancy leaves of absence; and I said, and the company even went to the point of agreeing that, if the Supreme Court, in the G.E. case, rules against the company, that we would make the holding of that decision retroactive to the signing of the contract. And I said, we agreed to this months ago. I said, and signed it off. And I said, and now, I find out that this union is suing this company and in effect, through their request of the remedy, nullifying the agreement that we had reached on leave of absence and sickness and accident, disability benefits. That we had agreed to in this contract. Had signed off. And I said, I just absolutely cannot imagine that. I said, I do not understand how y'all operate. And at which time, Mr. Giardino says, I don't know anything about any lawsuit. And I said, well, I-I said, I can tell you right now, that your legal department knows something about that lawsuit, because they filed a lawsuit, and they included the Raleigh plant in that lawsuit. is * * And so, as I recall, Giardino says, I don't know anything about a lawsuit. And Robinson said, Willis Robinson said, I didn't sign that off. I didn't sign off those provisions. And I didn't remember, to be honest with you. I looked at John Bezek and said, didn't he sign those provisions off?. And John Bezek said, well, he didn't, but Rick Fiore did. Rick Fiore was one of the negotiators who had come in, to relieve Willis Robin- son, while he was down working on a case down at Wilmington. * is A. That meeting opened up with Mr. Giardino saying, that at our last meeting, I thought we were real close to getting the whole thing worked out, he says. And as I understand it, the only problem we got is. .. whether they've got to sign new cards. I The lawsuit was filed by the International Ulnion against Stackpole Carbon Company in the United States District Court for the Western District of Pennsylvania. And I said, we-the company and the union had agreed that the present company benefits with regard to disability pay and sickness and accident would con- tinue, and by "continue," means that it's excluding maternity leave disability. 730 STACKPOLE COMPONENTS COMPANY * * So at that point in time, Giardino was very upset about it. Said, I don't know anything about this lawsuit. This is ridiculous. * nn . . . And when I got there, I says, listen, Mike, I going to make it very clear to you. I said, we have got to negotiate these provisions out. We've got to work them out. And I said, I'm willing to do it right now. So what are you going to do? I said, we can either do it today- or, if you'd rather, if you'd rather contact your legal department, find out just exactly what your position is, and get back a week from now, that'll suit me fine. I said, we have got to get you and the local and the international keyed in, and agreed, and make sure that y'all understand what you're agreeing to down here in Raleigh, North Carolina. And I says, I'm willing to negotiate it out right now. And so, at that point in time, Giardino says, he said something to the effect-what I say, goes. I'm telling you, we got a contract, and says, if I tell you we've got a contract, then we've got a contract. And I said, well, that's all fine and good, Mike. Said, but we sat in here through several negotiating sessions, working out this sickness and accident question and this leave of absence provision; and I said, we've pointed out to you, said we were not interested in signing a contract and being turned around, and have your union sue us on that contract that you agreed to. I said, we're not interested in doing that, I said, we pointed that out to you months ago. I said, that's precisely what we've wound up with. And I said, we've just got to work this out. And I said, I'm willing to do it right now, or I'm willing to do it later. If this suits you. And so, then he became very upset, and he says, accused us of stalling. And says, you're just stalling; he says, you don't want to sign a contract. And he says, I'll show you what I think about checkoff. He says, I'll sign the contract right now without checkoff. I said, well, that's great. I said, that's terrific. I said, but we've got to work out these other problems. That involve this lawsuit. And I pointed out to him, I said, I'm not asking you to withdraw your lawsuit. But I'm telling you, we've got to work out this thing and get an agreement on it. He says, you're not interested in a contract. Says, I'll see you in court. I said, wait a minute, now, Mike. I said, now let me tell you. I said, we want a contract. We want to sign a contract. I said, but it's senseless to sign a contract when we're being sued over this disability thing, and this leave of absence thing. And I said, I'm willing to sit down here right now, today, and work this out. On cross-examination by the General Counsel, Miles testified further that: Q. In the meeting of May 18th, the only issue that was discussed there concerning contract negotiations was the lawsuit and its effect on the sickness and accident provisions that had been signed off on, is that correct? A. Well, that, and if you recall, that I said that Mr. Giardino, he said, that y'all think we're so concerned about checkoff. He said, we'll just sign the contract without checkoff. At which time I said, well, that's fine, great. But I said, we've got this other problem, too. Q. But checkoff did not pose an obstacle to signing a contract? A. It didn't, after he said, fine, we'll sign without checkoff. The Respondent at times read to employee meetings or posted in the plant statements as to the negotiations. The notice as to the May 18 meeting states in part: This lawsuite [sic] in effect completely nullifies the agreement we had reached with the union here in Raleigh on September 24, 1975. .... We pointed out to the union this morning our shock and disbelief that they would engage in such behavior.... the union then said that they would sign the contract as previously negotiated and without checkoff. We have been, and continue to be, willing to sign the negotiated contract. However, the contract the union is willing to sign contains the maternity leave proposal we outlined above, which because of the lawsuit really means nothing. Concluding Findings I find, on the basis of the credited testimony and the record as a whole, that the February 19 meeting was a negotiation session, that the parties at that session reached agreement on the provisions in substance of the three outstanding contract issues, and that they agreed also that these provisions would be reduced to writing and signed at the next session. I find unbelievable, in all the relevant circumstances, the Respondent's contentions that this was an off-the-record meeting and that there was no discussion as to checkoff. The record, including admissions in the testimony of Bender and Bezek, shows that the union representatives repeatedly expressed gratification at the progress made at the February 19 meeting, that Carmicha- el, who had come from Pittsburgh to try to conclude an agreement, announced there was no need for him to attend the next meeting, that checkoff was admittedly one of the three major issues to be resolved, and that checkoff was mentioned several times at this meeting by Bender as well as by Carmichael. I therefore credit Giardino's testimony that verbal agreement was reached on all three major issues including checkoff. I find further that the February 26 meeting was scheduled to finalize these provisions as agreed to in substance on February 19, and to sign the contract concluded thereby, and that both parties agreed according- ly, as Bezek testified, to post notice of an employee meeting to be held that evening "for the purpose of ratification." I find that Bezek reneged, however, as to the February 19 731 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement on checkoff. Giardino was, as Bezek admitted, visibly upset at Bezek's checkoff proposal, said the Union had been maneuvered into a position at this point in the negotiations where it had to accept Bezek's proposal or be accused of caring only about dues, but countered with a renewal of a previous wage demand. At the April 19 meeting, Miles said, as he and Bezek testified, he was willing to sign "the contract." I find that this expressed willingness to sign was thwarted, not by Giardino making demands as to checkoff, but by Miles objecting to the Union's "dumb, dumb, dumb" action in filing unfair labor practice charges against the Respondent. That this was the issue at the time is shown by the testimony of both parties, including the testimony of Miles and Bezek that Giardino promised to have the charges that had been filed by Robinson promptly withdrawn. As Bezek admitted, when Giardino called to report the charges had been withdrawn, he asked Giardino if that meant all the charges. On May 18, after the charges were withdrawn and the union representatives were prepared to sign the contract, Miles asserted that the lawsuit filed by the International Union for maternity leave benefits could cost the Respon- dent millions of dollars and nullified the agreement, and he refused to sign the contract until certain provisions were renegotiated. When the union representatives argued that the lawsuit did not nullify any part of the agreement and asked how or in what respect any provision of the agreement was nullified by the lawsuit, Miles merely repeated that the lawsuit nullified the agreement. And when Giardino stated that the Union would sign a contract with no checkoff provision, Miles repeated his statement that the lawsuit nullified the agreement and his offer to renegotiate certain contract provisions. The evidence in its entirety shows, and I find, that the Union, after an election held on October 11, 1973, a certification issued on November 14, 1974, a settlement agreement to bargain collectively entered into on May 22, 1975, contract negotiations beginning on August 4, 1975, and numerous votes by the membership rejecting proposals of the Respondent and postponing scheduled strike action, was willing and anxious, by May 18, 1976, to make concessions, including elimination of the checkoff provi- sion, in order to achieve a first contract with the Respondent, whereas the Respondent was meeting and negotiating, but was evidently raising obstacles, not in order to resolve contract issues, but to delay execution of any contract with the Union.8 The Respondent argues in its brief that Miles, an attorney with considerable experi- ence in negotiating collective-bargaining contracts, would not have refused to bargain until the charges were withdrawn, or until the lawsuit was withdrawn, knowing that would be a violation of the Act. I find, however, that, even if Miles avoided so stating explicitly, this was clearly implicit in what he did say, and this, as the Respondent's representatives were aware, was the message conveyed to the Union.9 8 N.L.R.B. v. Herman Sausage Company, Inc.. 275 F.2d 229 (C.A. 5, 1960); N. L.R.B. v. Pacific Southwest Airlines, 550 F.2d 1148 (C.A. 9, 1977); Transport Inc. of South Dakota. 225 NLRB 854(1976). 9 O'Land. Inc., d/b/a Ramada Inn South. 206 NLRB 210 (1973). The Respondent concedes, as stated in its brief, that "It is bad faith to condition bargaining or execution of a collective bargaining agreement upon the withdrawal of a lawsuit, a grievance, or an unfair labor practice charge," but argues that no complete agreement had ever been concluded. I find, however, on the record as a whole, that all the contract terms were agreed to in substance, in writing or verbally, on February 19, and, further, that the Respondent on February 26, when the parties met to write up and sign the terms of the February 19 agreement, reneged on the agreement as to checkoff and refused to sign the contract on which agreement had been reached; on April 19 refused to sign the contract on which agreement had been reached on the ground that unfair labor practice charges had been filed; and on May 18 bargained to impasse over the demand for withdrawal of a lawsuit filed by the International Union, and refused to sign the contract on which agreement had been reached until such withdrawal. In conclusion, therefore, I find that the Respondent, on and after February 26, refused to execute an agreed-upon collective-bargaining contract; on April 19 conditioned execution of an agreed-upon collective-bargaining contract on the Union's withdrawal of unfair labor practice charges it filed against the Respondent; on May 18 bargained to impasse over the Union's refusal to withdraw a lawsuit filed against the Respondent under Title VII of the Civil Rights Act of 1964, a nonmandatory subject of bargaining; and on May 18 conditioned execution of an agreed-upon collective-bargaining contract on the Union's withdrawal of that lawsuit, and that the Respondent thereby, on and after February 26, has refused to bargain collectively in good faith with the Union as the exclusive collective- bargaining representative of the Respondent's employees in an appropriate unit, in violation of Section 8(a)(5) and (1) of the Act.io The Respondent's motions to dismiss, made at the hearing and in its brief, are accordingly hereby denied. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(5) and (I) of the Act, I shall recommend that the Respondent be ordered to cease and desist therefrom and from in any like or related manner infringing upon its employees' "I See N.L. R. B v. Greensboro Printing Pressmen andAssistants' Union No. 319, 549 F.2d 308 (C.A. 4. 1977); N.LR.B. v. Midwesr Hangar Co. 550 F.2d 1101 (C.A. 8, 1977); Ramada Inn South, supra; John Zink Company, supra; SchuYlkill Merals Corporation, supra. 732 STACKPOLE COMPONENTS COMPANY Section 7 rights, and to take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent unlawfully refused on and after February 26, 1976, to execute an agreed-upon contract which was to become effective on March 1, 1976, for a year, and thereby refused to bargain in good faith with the certified exclusive collective-bargaining represen- tative of its employees in the appropriate unit. I shall therefore recommend that the Respondent be ordered, upon request by the Union, to execute that contract for the I-year period it was to be in effect, and for a I-year renewal effective March 1, 1977, and, upon request by the Union for such execution and for such renewal, to give retroactive effect to the terms of that contract," or, if the Union does not request such execution or renewal, that the Respondent be ordered to bargain collectively in good faith, upon request, with the Union, as the certified exclusive collec- tive-bargaining representative of its employees in an appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW I. The Respondent, Stackpole Components Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Ma- chine Workers, AFL-CIO-CLC, Local 187, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Union is, and has been at all times since November 14, 1974, the certified exclusive collective- bargaining representative of the Respondent's employees in an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By refusing on and after February 26, 1976, to execute an agreed-upon collective-bargaining contract; by conditioning execution on April 19, 1976, of an agreed- upon collective-bargaining contract on the Union's with- drawal of unfair labor practice charges filed against the Respondent; by on May 18, 1976, bargaining to impasse over the Union's refusal to withdraw a lawsuit filed against the Respondent under Title VII of the Civil Rights Act of 1964, and conditioning execution of an agreed-upon collective-bargaining contract on the Union's withdrawal of that lawsuit, the Respondent, since on and after February 26, 1976, has refused to bargain collectively in good faith with the Union, and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 1 Trade Mart, Inc. 204 NLRB 1 (1973). 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions. and Order, and all objections thereto shall be deemed waived for all purposes. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 1'2 The Respondent, Stackpole Components Company, Raleigh, North Carolina, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Refusing to bargain by refusing to execute a contract negotiated and agreed upon with the Union, conditioning execution of an agreed-upon collective-bargaining contract on the Union's withdrawal of unfair labor practice charges filed against the Respondent or on the Union's withdrawal of a lawsuit filed against the Respondent under Title VII of the Civil Rights Act of 1964, or bargaining to impasse over withdrawal of the said lawsuit, a nonmandatory subject of bargaining. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request of the Union, execute and give retroactive effect to the collective-bargaining contract on which agreement was reached on February 19, 1976, to be effective March I, 1976, for a year, and to a I-year renewal, if requested by the Union, effective March 1, 1977, and, if the Union does not request such execution or renewal, bargain collectively in good faith, upon request, with the Union, as the certified exclusive collective-bargaining representative of its employees in a unit found appropriate, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is: All production and maintenance employees employed at the Respondent's Raleigh, North Carolina, plant, excluding all office clerical employees, technical em- ployees, professional employees, guards and supervi- sors as defined in the Act. (b) Post at its plant in Raleigh, North Carolina, copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Regional Director for Region II, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained for 60 11 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted hb Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 733 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region II1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 734